# FILED
March 9, 1999 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT NASHVILLE DECEMBER 1998 SESSION

STATE OF TENN ESSEE, ) ) C.C.A. NO. 01C 01-9802-CR-00073 Appellee, ) ) SUMNER COUNTY VS. ) ) HON. JANE WHEATCRAFT, CHARLES A

. CRENSHAW, a. k.a ) JUDGE “BOO” ) ) Appellant. ) (Ineffective Assistance of Counsel)

FOR THE APPE LLANT: FOR THE APPELLEE:
BRENT HORST JOHN KNOX WALKUP 42 Rutledge St. Attorney General & Repor ter Nashville, TN 37210 (On Appeal) KIM R. HELPER Asst. Attorney General ROGER SINDLE Cordell Hull Bldg., 2nd Fl. 103 Bluegrass Commons Blv d. 425 Fifth Ave., North Hendersonville, TN 37075 Nashville, TN 37243-0493 (At Trial) LAWRENCE RA Y WHITLEY District Attorney General DEE GAY Asst. District Attor

ney General 113 West Main St. Gallatin, TN 37066

OPINION FILED:

AFFIRMED JOHN H. PEAY, Judge2 

### O P I N I O N

On April 1, 1997, th e defen dant was f ound guil ty by a jury of facilitation of the sale ofcocaine and of possession of marijuana. The defendant was sentenc ed as
a Range II multiple offender to a ter m of eight years for

the faci litation of the sale of cocaine and a term of eleven months, tw enty-nine days for the pos session of marijuana. These sentences were to run c ons ecutively and were to be served i n the Tennessee Departmentof Correction. The defendant’s subsequent motion for a new trial was denied bythe trial court. The defendant now appeals and argues that he was denied the effect ive assistance of

counsel. After a review of the record and applicable law, w

e find the defendant’s contention to be without merit and thus affirm the judgment of the court below.

The defendant’s convictions ste m from his involvement with a sale of crack cocaine on February 2, 1996, to an informant working w

ith the Sumner County

Drug Task Force. The evidence at trial indicatedthat the defendant, while in Michael Everett’s car, gave a quantity of crack cocaine to Eric Oldham. After dropping the defendant off, Mr. Ev erett and Mr. Oldham drove around the neig hborhood. Mr. Oldham then sol d the cocaine he received from the defendant to the c onfidential informant. After thesale, the informant returned tothe drug task force locati on where he had been wir ed and searched before the sale. After the informant briefed the officers and gave them the purchased cocaine, the officers began to search for M r. Everett’s vehi cle. Mr. Everett testified that after the sale to the informant, he and Mr. Oldham went to a frie nd’s nearby residence. The defendant arrived shortly thereafter, at which point the defendant and Mr. Oldham wentoutside the residence for a f ew minutes. Mr. Ev erett, Mr. Oldham, and the defendant then left

the residence and were s potted by police a few minutes later. After1 The poli ce had photocopied t he money gi ven to t he info rmant to bu y the crack cocai ne. As such, the police were able to identify the bill s according to their serial number. 3 the police initiated a traffic stop of Mr. Everett’s car, the three men were s earched. Upon searching the defendant, the police found six hundred fifty dollar s ($650) in cash. After examining the cash, the police found that two of the twenty dol lar ($20) bills were the bills used by the informant

to purchase the cocaine fr om Mr. Oldha m. 1 The police also found 1.3 grams of marijuana in the car.

The defendant n ow con tends that his trial counse l was ineffective for several reasons. In review ing the petitioner’s Si

xth Amendm ent claim of inef fective assistance of counsel, this Court must det ermine whether the advi ce given or services rendered by the attorney were within the range of c ompete nce dema nded of attorne ys in criminal cases. Baxter v. Rose , 523 S.W.2d 930, 936 (Tenn. 1975). To prevail on a c l aim of ineffective counsel, a petitioner “must show that coun sel’s representation fell below an object ive standard of reasonableness” and th at this performance prejudiced the defense. There must be areasonable probability that but for counsel’s error the result of the proceeding would hav e been different. Strickland v. Washington , 466 U.S. 668, 687-88, 692, 694 (1984); Best v. State , 708 S.W.2d 421, 42 2 (Tenn. Crim. App. 1985).

The defendant claims

that his trial counsel w

as ineffective for his failure t o object to, and his own solicitation of, evidence of other bad acts and crimes committed bythe defendant. Specifically, th e defendant points to Mr. Ever ett ’s testimo ny, which referred to the defendant selling cocai ne to various other people o n the day Mr. Oldham sol d the cocaine to the informant. The defendant claims that there was no c onnecti o n between these earlier sales to other people and the sale to th e c onfidential informant. The defendant contends that his trial counsel should have objected to the testimony.4 Tennessee Rule of Evidence 404(b) g overns the a dmissib ility of prior misconduct. It states,

Evidence of other crimes, w rongs, or acts is not admissible to prove the character of a person in or der to show action in c

onformity with the character trait. It may , however, be admissi ble for other pur poses. The conditi ons whi ch must be satis fi ed be fore allowing such evidence are: (1) The court up on request must hold a hearing outside the jury’s presence; (2) The court must dete rmine th at a material issue exi sts other tha n conduc t conforming with a char acter trait and must upon request state on the recor d the material issue, the rul ing, and the reasons for admitting the ev idence; and (3) The court must exclude the evidence if its probati ve value is outweighed by the danger of unfair prejudice. Tenn. R. Evid. 404(b). However, there are exceptions to this rule. “[E]vidence of other crimes may

be admissible to show

(1) motive; (2) int

ent; (3) guilty kn owledge; (4) identity of the defendant; (5) absence of mistake or

accident; o r (6) a commo n schemeor plan forcommission of

two or more crimes so related to each other that proof of one tends to establish the other.” State v. Hoyt , 928 S.W.2d 935, 944 (Tenn. Crim. App. 1995) ( citing Collard v. State , 526 S.W.2d 11 2 , 114 (Tenn. 1975)); see also State v. Bordis , 905 S.W.2d 214, 227 (T enn. Crim. App. 1995).

In the case atbar, the evidence of other bad ac ts referred to the defendant selling drugs to other

people shortly before the sale to the informant. As this evidence tends to show

that the defendant, who furnished the coca ine that Mr. Oldham ultimately sold to the informant, was involved in a common scheme to sell drugs, it was admissible
as an exception to Tennessee Rule of Evidence 404(b). As such, the defendant’s trial counsel did not errin failing to object to the introduction of the evidence.This contention is without merit.

The defend ant next contends that he received the ineffectiv e assistance of5

counsel when his trial couns el elicited testimony

from Mr. Everett that the d efendant had,
on several prior occasions, given Mr. Everett drugs. The actual testimony is as follows:

Q. Let me go over your testimony for you. Y our testimony was [the defendant] gave [you] [drugs ] because [you] gave hi m a ride. So you transported [the defendant] that day , right? A. Yeah, I did transport him that day, yes, sir. Q. And in the past, have peopl e like [the defendant], maybe [the defendant] himself or friends or acquai nta nces, h ave they given y ou some dope? A. Yes, sir. Q. There is nothing unusual about that, is there? A. No, sir. Q. I really have a problem with this, too, and maybe you can help me. Your testimony is, I’m riding along in the car with these people, or I’m in their acquaintance, and I’m not selling any dope; but [the defendant] givesto Mr. Oldham the dope and says, “Go sell this, a nd bring me the moneyback.” Now, did you ever give anybody dope and say, “Go sell this and bring the money back”? A. No, sir. Q. You never have done that? A. No, sir. Q. Why? Why wouldn’t you do that? A. No, sir. Q. Why not? A. I was too strung o ut, and I always smoked it. Q. So th at would be kind of unusual, wouldn’t it, for somebody that is a user? A. It would be unusual for somebody that wasusing, for the dope dealer to give the user the dope and thinking that he’s goi ng to go out and sell it. More than likely , he’s going to smoke it. . . . Q. Mr. Oldham, is he a user? A. I don’t know . . . . Q. Wait a minute. H ow long ha ve you kno

wn Mr. Ol dham? A. I’ve known Mr . Oldham a long time. Q. You’re telling the ladies and gentlemen you never saw him use drugs. Think about that. A. I have seen him use drugs. Q. So now he is a user? A. Yeah, he is somewhat of a u ser . . . . Q. Mr. Everett, in all honesty, can you look at the . . . jury and you tell them this? You don’t think it was a little b it unusual ab out the fact of your testimony . . . . [The defendant ] is going to give t

o a user some dru gs and say, y ou know, go out and sell this, you know, and br ing the money back? You don’t see anything unusual? A. It is uncommon.
In light of this series of quest ion s, it seems clear that the defendant ’s trial counsel w

as trying to raise doubt as to whether t he def endant had given drugs to Mr. Oldham for6

resale. This Court should not second-guess tr ial counsel’s tactical

and strategic choices unless those choices were uni nformed because of inadequate preparatio n, Hel lar d v. State , 629 S.W.2d 4, 9 (Tenn. 1982), and counsel should n ot be deemed to have been ineffe ctive merely because a different proc edur e or strategy might have produced a different result. Williams v. State , 599 S.W.2d 276, 280 (Tenn. Crim. App. 1980). As it
seems that trial counsel’s strategy in this line of questioni ng was to impeach the credibility of the witness, we will not second-guess his tactics because another tactic m ight hav e produced a different result. In addition, even assuming that this line of questioning was due to inadequate preparation or fell below an objective standard of reasonableness, in light of the eviden ce against him, the defendant has failed to show that but for this error the result of the proceeding would have been different. Strickland , 466 U.S. at 687-88, 692, 694. As such, this contenti on is also without meri t.

The defend ant next contends that he received the ineffectiv e assistance of counsel because his trial counsel di d not object to Officer Bunch’s tes timony that indicated he kn ew the defendant “on sight” for most of hi s police career, that the defendant cussed and yelled at the time of his arrest, and that the def endant h ad always had that kind of attitude. Howev er, the defendant’s trial counse l specifically stated dur ing cross-examinationof Officer Bunch that there were some questions asked during direct examination to which he did not object because hewanted to go over them during crossexamination. The defendant’s trial counsel then questioned the officer regar ding the defendant’s demeanor

at the time of his arrest. Trial counsel made the point, and Officer Bunch agreed, that it is not unus ual for people to become upset when they are arrested fora crime they did not commit . Once agai n, th is is a matter of trial strategy. As this choice o f strate gy was not due to in adequate preparation and it di d not fall below an objective standard of reasonableness, the defendant has failed to show that he r eceived7

the ineffective assistance of counsel . The defendant has also failed to s how that any comments by Officer Bun ch that he knew the defendant prior to this arrest had any prejudicial effect or that the result of the proceeding would have been different had his trial counsel objected to this testimony. This contention is also without mer it.

The defendant finally contends that he di d n ot receive the eff ective assista nce of counsel because his trial counsel did not object to the prosecu tor’ s comments during closing ar gument that the def endant is a “big kahuna,” that the defendant had been selling drugs all day that day, and that p rovidi ng marijuana “is the regular for [the defendant].” The defendant argues that these comments rise to the level of prose cutorial misconduct and his trial counsel’s failur

e to object to these comment s constitutes ineffective assistance of counse l.

When claiming p rosecutori al mi sc onduct, the defendant is require d to show tha t the argument was so inflammatory or the conduct so improper th at it affected the verdict to his detriment. Harrington v. State , 385 S.W.2d 758, 759 (Tenn. 1965). In reviewing an allegation of improper conduct, this Court should consider several factors including the intent of the prosecutor, the c urative measures that w ere undertaken by the court, the improper conduct view ed in context and in light of the facts and circumstances of the case, the cumulative effect of the re marks with any other errors in the record, and the relative stre ngth or weakness of the case. Judge v. State , 539 S.W.2d 340, 344 (Tenn. Crim. App. 1976).

In the case at bar, the prosecutor referred to the defendant as a “big kahuna” in an attempt to portray the defendant as the leader of a small scale dr ug ring. As for the statement that the defendant had been selling drug s all day that day and that8

providing marijuana is “the regular” for him, the pr osecutor was simply

paraphrasing the testimony

of Mr. Everett. In light of this and the streng th of the State’s case against the defendant, the defendant has failed to show that the prosecut or’s argument was so inflammatory or improper that it prej udiced the defendant. Therefore, this contention is without merit.

In sum, we find that the defendant recei ved the effec t ive assistance of
counse l. According ly, we affirm the trial court’s denial of the defendant’s mo tion for a new trial.

______________________________ JOHN H. PEAY, Judge

CONCUR:

______________________________ JOSEPH M. TIPT ON, Judge

______________________________ NORMA McGEE OGLE, Judge